Principal Eric L. Klein (Boston) recently spoke with Massachusetts Lawyers Weekly on the U.S. Supreme Court's decisions in Loper Bright Enterprises v. Raimondo,Securities and Exchange Commission v. Jarkesy, and Corner Post, Inc. v. Board of Governors of the Federal Reserve System for its article, "Supreme Court Dropkicks Administrative State." Earlier this month, B&D published an alert outlining the implications of these cases.
Eric noted that Loper Bright, which overturned Chevron, would potentially have the least impact. He explained that the overturn of Chevron had "already been 'priced-in' to a lot of agency and corporate work. In the last 10 years, you've seen less and less reliance on Chevron by courts and less reliance on Chevron by agencies looking to defend their regulations."
With regard to Jarkesy, Eric said that one "could make the argument that the whole Administrative Law Judge system is on its way out because of Jarkesy." He also added that the decision could have more of a long-term impact compared to Loper Bright.
When discussing the Corner Postdecision, Eric said that the decision could open a "huge loophole" in the statute of limitations.
"The big question in my mind is whether that is the way it will be interpreted [by the lower courts]," Eric said. "If any new entity comes into being with a new right to facially challenge any regulation, no matter how old — if that is truly what the law is going to be — then the Supreme Court has essentially abolished the statute of limitations on facial challenges [to regulations] under the APA."
In partnership with our deep air, water, waste, chemical, and natural resource (among other) regulatory practice areas, B&D's litigators are actively involved in cases in courts nationwide, including the U.S. Supreme Court, where we recently secured a victory for a natural gas pipeline client in Ohio v. EPA relating to the CAA and are preparing to argue a CWA case in the Court's upcoming fall term for the City and County of San Francisco. B&D regularly assists clients with all manner of state and federal administrative law proceedings, including rulemaking challenges and other litigation.
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